dissenting:
The only issue before this court is whether the trial court erred in granting summary judgment to the defendants on the grounds that the press release involved was privileged as a matter of law under 12 O.S.1981 § 1443.1 as a “fair and true” report of a judicial proceeding. The trial judge ruled only that the statements were privileged as a fair and true report of a judicial proceeding. I would reverse and remand because the question of whether the report in this case is “fair and true” is a question for the jury because readers could differ on the meaning of the press release. The case involves only interpretation of Oklahoma law on privilege; federal cases are not necessary to make that determination.
Title 12 O.S.1991 § 1443.1 provides:
“A. A privileged communication is one made:
Third. By a fair and true report of any legislative, judicial or other proceeding authorized by law, or any thing said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.
B. No publication which under this section would be privileged shall be punishable as libel.”
It is immaterial, in making the determination, whether the plaintiff is a public figure, nor is actual malice an element to be considered. The sole question is whether the release is privileged; if so, it is not libelous.
The third paragraph of § 1443.1 contains three privileges: a) the fair and true report of a judicial proceeding is privileged, 2) any and all expressions of opinion in regard thereto and criticisms of such report are privileged, and 3) any and all criticisms upon the official acts of public officers are privileged unless a crime is falsely imputed thereby. In order for opinion to be privileged, the report itself must be privileged by being a fair and true report of the judicial proceeding. That is, only when it is first determined that the report is fair and true can the determination be made whether expressions of opinion in regard thereto are privileged. The matter before us involves only the first question — whether the report is fair and true. To say as a matter of law that the report at issue is a fair and true report because the statements are expressions of opinion begs the question, in my opinion.
In Crittendon v. Combined Communications Corp., 714 P.2d 1026 (Okla.1986) this Court determined that the report of a judicial proceeding in that case was privileged as a matter of law. We found there that a “substantially accurate” account will suffice if it conveys to the persons who read it a substantially correct account of the proceedings. Where the gist of the entire report was both fair and true, we found that the report would be protected by statutory privilege. We were able to so determine in that case because the circumstances of the publication: the content, who made it, and what it was about were not in dispute. Because the facts were undisputed, we said, the trial court should have resolved the issue of privilege as a matter of law. Crittendon does not stand for the proposition that every question of statutory privilege is to be decided as a matter of law. Only where the facts are not in dispute is the issue to be decided as a matter of law.
The case at bar is different. The content of the press release and what it was about is disputed. Because the press release is not an essentially verbatim account of the judicial proceedings, we cannot say as a matter of law whether the publication is absolutely privileged and Crittendon does not apply. It is a fact question for the jury whether the *1382press release is a fair and true or substantially accurate report of a judicial proceeding.
I believe that the disputed nature of the contents is illustrated by making the argument that the press release, as a matter of law, is not a fair and true report of a judicial proceeding under the statute. It can be argued that the report is not a fair and true report of a judicial proceeding for the reason that the report is neither fair nor true. The press release substitutes “Bill Price” for Seneca Oil Company in reporting the proceedings. The “wrongdoing” quoted by the Tenth Circuit was made in Seneca’s bankruptcy appeal, a proceeding to which Price was not even a party.
A recap of the underlying proceedings illustrates the liberties taken by defendants in their press release. William S. Price as Trustee of the Joel S. Price, Virginia K. Price Trust is a named party in one proceeding only, CIV 81-215T, before the U.S. District Court for the Western District of Oklahoma. In that proceeding he is one of the named plaintiffs, along with Seneca Oil Company and others, seeking a declaratory judgment that the ruling on which the Department of Energy relied was invalid. The district court ruled for the plaintiffs, finding that the DOE interpretation was invalid, and ergo, that Seneca was correct in its interpretation as to the classification of the oil produced.
The appeal of CIV-81-215 to an Emergency Temporary Court of Appeals, reported at 712 F.2d 1384, reversed the district court, finding, after 11 pages of discussion, that the DOE ruling was valid. The district court was directed to grant motions for appropriate orders to secure recovery from appellees of the overcharges in violation of Ruling 1980-3 and the May 2, 1979 legislative regulation, plus interest and costs. The temporary Court of Appeals stated: “... district court is directed to grant [DOE’s] motion for summary judgment and to grant motions for appropriate orders to secure recovery from appellees of the overcharges in violation of Ruling 1980-3 and the May 2,1979 legislative regulation, interest thereon and costs.” There is no statement in the judicial proceeding to which Price was a named party of wrongdoing, gouging, or any finding of guilt regarding illegal activity on the part of any of the appellees. The only words used are “overcharges in violation of Ruling ...” and statements that Seneca miscertified the oil.
Before judgment was entered, Seneca filed for Chapter 11 reorganization. Price was not a party to the Seneca bankruptcy. The Department of Energy filed a proof of claim for the $1,741,597.77 amount of the overcharges plus interest to date of bankruptcy. The DOE asserted a constructive trust over the approximately $1.3 million that Seneca had held in a contingency fund pending outcome of interpretive ruling by DOE. The district court found that a constructive trust should be imposed because it concluded that Seneca’s illegal overcharging “clearly and unequivocally shows wrongdoing.” In re Seneca Oil Co., 76 B.R. 813.
On appeal of the bankruptcy orders in the Seneca bankruptcy, the Tenth Circuit found that although the question was a close one, under Oklahoma law there was sufficient evidence of wrongdoing to support imposition of a constructive trust, to wit: “more wrongdoing than the typical debtor creditor situation”. This language arose in Seneca’s bankruptcy, not in the underlying case where Price was a party as Trustee. Price was not a party to the bankruptcy; the press release’s references to Price as a “defendant” along with Seneca is more than mere opinion or comment. It is a misstatement of the parties to the proceeding.
There is more here than simple exaggeration or hyperbole, or expression of opinion on a fair and true report of a judicial proceeding. There is, arguably, misrepresentation. The headline of the press release states, “Price Broke Law, Find $1.74 million by Federal Government.” There is nothing in the body of the press release to negate the imputation that Price alone was fined $1.74 million. The statement that Price and a group of oil companies and investors were found guilty by two courts and the U.S. *1383Department of Energy of violating federal oil price guidelines is false. At the very least there is a disputed question of fact whether the reports concerning Seneca’s bankruptcy proceeding are true as to Bill Price, Trustee, and a difference of opinion as to whether they are fair.
Whether the Seneca bankruptcy proceeding, in which Bill Price was not a named party, was a judicial proceeding even involving Bill Price, Trustee, is a question of fact for the jury. While it may be true that Bill Price, as Trustee, did have an interest in the Seneca bankruptcy and that a portion the money involved there was attributable to Bill Price, Trustee, the opposite may be true. Whether the report is fair is another question to be decided. In any event, whether the press release was a fair and true report of a judicial proceeding in this case cannot be decided as a matter of law, but is a question for a jury to decide.
ALMA WILSON, C.J., and LAVENDER and OPALA, JJ., concur in the views herein expressed.